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in holding the evidence fails to establish any agreement or obligation on the part of the bank which renders it liable to complainant; and (3) in finding that there is no agreement, oral or written, in the name of the bank.
The record is extremely voluminous, and contains a large amount of irrelevant matter. The fundamental question involved is one of fact, and nothing would be gained by a long rehearsal of the evidence. Suffice it to say that we concur with the Circuit Court in the conclusion that the New York Lumber Company was not the “Standard National Bank acting under the name and disguise of the lumber company,” and that the bank did not, either directly or as undisclosed principal, enter into any contract to respond to complainant for the defaults of the lumber company. Brown was vice president and a director, Burrows was a director, and as such officers they were the agents of the bank to do what bank officers may properly do. Mayer was a special agent employed to collect the claims of the bank against the Snowden Company. Within the scope of their employment whatever was done by these agents would be binding upon their undisclosed principal, but there is nothing to show that the principal in this case ever employed them or either of them to embark the bank in the business of running a sawmill in Florida. The circumstance that, after the lumber company was started, the bank financed it by discounting its paper and loaning it money, is not persuasive, nor does it make any difference that the vice president promised in advance that he would make loans of the bank's funds for such purpose. Such a promise was highly improper, under all the circumstances, and the funds of the bank were most improvidently handled in the effort its officers made to get back money which their prior improvidence had sunk in a bankrupt enterprise; but the evidence falls far short of establishing any action by the bank which would make it directly responsible for the obligations of an independent corporation engaged in the lumber business.
The fourth assignment of error deals with a finding of the Circuit Court touching the application of the doctrine of ultra vires. That need not be considered; it would be idle to discuss whether a national banking corporation could or could not do something, when the proof fails to show that it did or even tried to do it.
Of the remaining errors assigned it is stated in the brief that, "while they are severally insisted upon, they do not seem to require separate consideration." There is no other reference to them; it will be sufficient therefore to state that, in our opinion, they do not present ground for reversal.
The decree is affirmed, with costs.
(Circuit Court of Appeals, Second Circuit. July 1, 1903.)
1. SHIPPING-INJURY TO CARGO-SEAWORTHINESS OF SAIP.
A new steel steamship, admittedl first-class in construction and equipment in every other respect, cannot be held liable for damage to a cargo of wheat by water, on the ground of unseaworthiness at the beginning of the voyage, because of the insufficiency of the hatch coverings, under section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946]), where the wooden covers were tight and well fitted, and over them were fastened two canvas covers of No. 1 hard duck-one new, and the other nearly so—such as were usually considered a sufficient covering, and which were specifically approved by the underwriter's surveyor under whose inspection the loading was done, and where shortly after sailing the vessel encountered a three-days hurricane, during which the seas broke over her, dismantling her steering gear and producing a general straining and leakage, resulting in injuries which it cost $14,000 to repair. Under such evidence, the damage must be at
tributed to perils of the sea. Appeal from the District Court of the United States for the Southern District of New York.
Appeal by libelants from a decree of the District Court for the Southern District of New York dismissing libel for damages to cargo of wheat while being carried by the steamship Hyades from Galveston to New York, in September, 1900. The negligence charged against the vessel is her failure to provide suitable hatch coverings for the voyage. Decision below is reported in 118 Fed. 85.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.
COXE, Circuit Judge. The salient facts are carefully stated in the opinion of the district judge.
The third section of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946]) provides that if the owner of any vessel transporting merchandise or property shall exercise due diligence to make her in all respects seaworthy and properly manned, equipped, and supplied, she shall not be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel or for losses arising from the dangers of the sea or acts of God.
The Hyades was a new steel steamer of the highest class, having been completed in June, 1900, three months prior to the voyage in question. She was exceptionally strong, contained all the latest improvements and was propelled by triple expansion engines of 2,000 indicated horse power. Indeed, it is practically admitted that she was structurally perfect and seaworthy in all respects, save one; the covering of her hatches. The coamings were three feet in height and so constructed that it was impossible for water to stand on the
T 1. Losses by perils of the sea, see note to The Dunbritton, 19 C. C. A, 465.
hatches. The covers were of white pine, laid fore and aft in tiers. They were made with straight edges, designed to fit tightly without calking. When the wooden covers were in place two canvasses of “hard No. 1” cotton duck were spread over them and securely battened down. One set of these canvas covers was absolutely new, being used for the first time, and the other set was substantially new, having been supplied in June. The testimony fully sustains the finding that this material is the best known hatch covering in use and that it is not customary to employ oil, tar or any other preparation, in connection with it. It was also proved that it was customary to use but two covers of this hard, heavy, closely woven canvas, although frequently a third covering of old material, called a "chafer," is used to protect the other two. The surveyor of the underwriters, under whose inspection the vessel was loaded, testified: "I considered her as safe when she left Galveston, to go to any part of the world, as any ship I ever saw.” In short, we are unable to specify any additional protection which could have been adopted to make the vessel more seaworthy.
Two days after leaving port the Hyades was caught in the very center of the unprecedented hurricane which swept over Galveston with such appalling results. For three days she was buffeted by wind and waves, tremendous seas breaking over her, which dismantled her steering gear, carried away everything movable and produced a general straining and leakage of the ship. It is enough to say she was so severely injured that it cost $14,000 to repair her. The wonder is not that the cargo was damaged but that the ship survived at all.
We have, then, the case of a strong, new, modern steel ship, seaworthy in every respect and properly manned and equipped, encountering a cyclone of unprecedented fury, which for three days held her in its grasp. That the damage to the cargo was due to the storm cannot be doubted. Indeed, a better illustration of loss by perils of the sea can hardly be imagined.
The decree is affirmed with interest and costs.
BOKER V. UNITED STATES.
(Circuit Court of Appeals, Second Circuit. July 1, 1903.)
1. CUSTOMS DUTIES–CLASSIFICATION-COLD-ROLLED STEEL IN STRIPS.
Steel in strips, varying from 12 inch to 6 inches in width, and from No. 10 wire gauge to No. 36 in thickness, mostly in coils exceeding 100 feet in length, produced by rolling a billet or bar cold, and not by shearing from commercial sheet steel of greater width, and known commercially as "steel strips," or "cold-rolled steel," is dutiable under Tarifs Act Aug. 27, 1894, c. 349, § 1, Schedule C, par. 122 (28 Stat. 516), which provides for "steel in all forms and shapes not specially provided for in this act," and not under section 1, Schedule C, par. 124 (28 Stat. 517), as
"sheet steel in strips," regardless of its value. Appeal from the Circuit Court of the United States for the Southern District of New York.
Appeal from decision of the Circuit Court affirming a decision of the board of general appraisers which affirmed a classification of certain imported merchandise as made by the collector.
For opinion below, see 116 Fed. 1015.
TOWNSEND, Circuit Judge. The appellant imported at various times, in 1894 and 1895, cold-rolled steel in strips. The collector assessed that portion of the merchandise valued above 4 cents per pound, under paragraph 124 of the act of 1894 (Act Aug. 27, 1894, C. 349, § 1, Schedule Č, 28 Stat. p. 517), which provides, inter alia, for an ad valorem duty of 40 per centum upon “sheet steel in strips." The importer protested, insisting that it should have been assessed under section 1, Schedule C, par. 122 (28 Stat. 516), which provides for "steel in all forms and shapes not specially provided for in this act.” The board of appraisers sustained the action of the collector. Testimony was taken on behalf of the importer in the Circuit Court, which subsequently affirmed the decision of the board. The importer thereupon appealed to this court.
The importer admits that the merchandise in question is steel, and that it is in strips, but he denies that it is sheet steel. This is, therefore, the only controversy. If the merchandise be sheet steel, it is conceded that the action of the collector was correct; if not sheet steel, his assessment should be overruled.
The board finds that the steel in question is cold-rolled steel in strips, valued above 4 cents a pound, varying in width from less than 1 inch to not exceeding 6 inches, and is mostly in coils exceeding 100 feet in length and varying in thickness from No. 10 wire gauge to No. 36, and possibly in some instances thinner than No. 36.
In United States v. Wetherell, 65 Fed. 987, 13 C. C. A. 264, where a similar controversy arose, the Circuit Court of Appeals in the First Circuit found that "what is commercially known as 'sheet steel' is rolled hot in mills called ‘sheet mills, especially adapted for the purpose, between rolls running so slowly that the sheets cannot be run over 12 feet in length, and that the sheets are not less than 8 inches wide.” And the court, construing paragraph 148 of the tariff act of 1890 (Act Oct. I, 1890, C. 1244, Schedule C, 26 Stat. 577), held that the words "sheet steel in strips” in said act, if they stood alone, "might be construed as meaning steel prepared in sheets in the ordinary sheet mills, and then in some way cut or sheared into strips.” But in view, inter alia, of the uncertainty as to whether strips sheared from what is commercially known as “sheet steel” had ever been imported, and of the fact that said act provided for sheet steel in strips, "whether drawn through dies or rolls," and that sheet steel could not be "drawn through dies or rolls," while the strips of steel there in question could be thus drawn, the court reached the conclusion that they were covered by the provisions of said act.
The provisions of the present act as to sheet steel in strips do not contain the words "whether drawn through dies or rolls,” and the importer has proved in this case that sheet steel in strips, stripped from commercial sheet steel, were, at and prior to the passage of this act, an important article in the trade and commerce of this country, and were known among dealers generally and uniformly as "sheet steel in strips." Each of the strips here involved is produced by rolling a billet or bar to a width of from one-half an inch to less than six inches; it is not cut or sheared from a piece of greater width; and such strips are known in trade and commerce as "steel strips," or as “cold-rolled steel."
The decision is reversed.
WHEATON V. DAILY TELEGRAPH CO.
1. CORPORATIONS-INSOLVENCY-RECEIVERS-ACTION BY STOCKHOLDER - MAR
Where a bank to which an insolvent corporation was indebted was not a party to an action by a stockholder for the administration of the corporation's assets, it was error for the court to direct the bank to pay over to the receiver of the corporation the amount of the corporation's deposits with the bank pending a determination of the bank's rights to
set off such deposit against the corporation's debt. 2. SAME-RIGHT OF SET-OFF.
Where, at the time of the appointment of a receiver for a corporation, it was indebted to a bank in a sum largely exceeding the amount of the corporation's deposit, the bank was entiled to set off such deposit
against the corporation's indebtedness to it. Appeal from the Circuit Court of the United States for the Southern District of New York.
Kneeland Moore, for appellant.
WALLACE, Circuit Judge. This is an appeal by the New Amsterdam National Bank from an order made in the above-entitled cause requiring it to pay over to the receiver of the defendant, the Daily Telegraph Company, a sum of money alleged to be the balance of a deposit account. The receiver was appointed in an equity suit brought by a stockholder of the Daily Telegraph Company in behalf of all the stockholders and creditors of the company to administer its assets. The company had kept a bank account with the New Amsterdam National Bank, and at the time when the suit was commenced the account showed a balance in its favor of about $2,000 arising from the moneys it had deposited over those it had drawn out. The bank alleges that at the time it held and owned a note of the company for $6,500, which was then due and payable. It refused to pay the balance of the de
12. See Banks and Banking, vol. 6, Cent. Dig. § 353.